Laessig v. Travellers' Protective Ass'n.

• Decision Date: 18 June 1902
• Parties: LAESSIG v. TRAVELLERS' PROTECTIVE ASS'N OF AMERICA.
• Court: Missouri Supreme Court

69 S.W. 469

169 Mo. 272

LAESSIG v. TRAVELLERS' PROTECTIVE ASS'N OF AMERICA.

Supreme Court of Missouri, Division No. 1.

June 18, 1902.

ACCIDENT INSURANCE — BURDEN OF PROOF — SUICIDE — PRESUMPTION — EVIDENCE.

1. Plaintiff in action on an accident policy has the burden of showing that death was due to accident, though defendant pleads that it was due to a cause which by the policy exempts it from liability; there being a presumption, however, against suicide.

2. The cause of death, in an action on an accident policy, may be found from facts and circumstances, without any direct proof.

Appeal from St. Louis circuit court; Wm. Zachritz, Judge.

Action by Rhoda J. Laessig against the Travellers' Protective Association of America. Judgment for plaintiff, and defendant appeals. Reversed.

Henry T. Kent and Seddon & Blair, for appellant. Sim T. Price and F. H. Bacon, for respondent.

MARSHALL, J.

This is a suit to recover $5,000 upon an accident benefit certificate issued by the defendant, a fraternal beneficial association organized under the laws of this state. The answer admits the character of its organization, then denies all the allegations of the petition, then admits issuing the benefit certificate, then pleads that by the terms of the certificate the defendant was exempted from liability if the member committed suicide while sane or insane, and then alleges that the member committed suicide, and therefore the defendant is not liable. The plaintiff is the widow of G. H. Clement Laessig, the deceased member, and is the beneficiary named in the certificate. There was a verdict for the plaintiff for $5,137.50, and defendant appealed.

Upon the trial the plaintiff proved the character of the defendant association, the membership of the deceased, the issuance of a certificate to the deceased on June 19, 1894, which entitled him "to all the benefits accruing from such membership under the provisions of the certificate and by-laws of this association, subject to the conditions printed on the back hereof and the application for membership," the provisions of the constitution and by-laws of the defendant, which provided a graduated compensation to be paid for external and accidental injuries, varying according to the character and seriousness of the injury, and providing for the payment of $5,000 in case of accidental death. Appellant's counsel have fairly stated the facts developed at the trial that are necessary to be considered in the determination of this appeal. That statement of facts is as follows: "The evidence of the plaintiff showed that Laessig had been last seen by his wife about seven o'clock on Sunday morning, July 2, 1899, when he left his home. She testified that he was then in good health; that he was well, and that she had never seen him in better spirits; that he had on a gold watch and charm, and a diamond pin in his shirt bosom. C. P. Girder, an express messenger, testified for the plaintiff that he was a messenger on the Frisco Railroad; that his train went out from St. Louis in the evening about ten minutes after the through fast train; that when near Arloe station his train stopped. He found that it had been flagged. The engineer of the first train came up, and said he thought he had run over a man. This was between nine and ten o'clock at night. They then went back a short distance, and found the body of Clement Laessig lying along the north side of the track, upon the stomach, — feet to the west. They were the first upon the spot. When asked to describe all he saw there, the witness testified that about five or six feet east of the body, between the rails, the head lay. Probably five or ten feet further to the east was a squash of blood clear across the tracks from north to south. On the outer edge of the ties, right close to the blood, was a pistol, one cartridge of which, to the right of the chamber, had been exploded. `The blood was right close to where the revolver lay and apparently where the train struck him.' His suspender was pulled down over the right shoulder. He had on but one shoe. His coat, his hat, and left shoe the witness picked up in the weeds, opposite to where he found the revolver. Witness did not see any watch or diamond pin on his body. It was a warm night. There appeared to be a very large hole over the left eye. It was dark — very dark — there at that time of night. The conductor had a lantern; and the engineer, his torch. He broke the revolver, and took the exploded cartridge out, and looked through the revolver. It didn't have the appearance of having been fired recently. The plaintiff introduced a doctor, who made the post mortem examination, who testified that the head was fractured, and body had bruises on one side. This was substantially all the evidence of the plaintiff as to the cause of Laessig's death. The defendant's evidence was substantially as follows: It showed that Laessig had been a clerk for Goebel & Wedderan, merchants of St. Louis, for sixteen years; that on the day before his death Mr. Goebel had informed him that on the following Monday his books would be examined by an expert; that on this announcement Laessig appeared very nervous and worried. Witness did not see him again. The expert who went over the books testified that he was short in his accounts about $8,000. The defendant showed that Laessig's body was found on Sunday, July 2, 1899, a few minutes after a train had passed west, lying alongside and north of the track of the Frisco Railroad, near Arloe station; that within the distance of a few feet further east was his head, inside the two rails; about fifteen or twenty feet further east, the rails showed evidence where the train had evidently run over and cut off his head, which was cut off from his body. There was a large pool of coagulated blood at that point, mainly inside the rail; some little being on the outside. There was no other blood around, except a small spot where the head was found. There was no evidence in the case on either side that blood was found anywhere between where the revolver was found and the head. As plaintiff's witness saw it, the blood was across the track, — the track opposite to the point where the revolver lay. As the defendant's witness saw it, there was there a large pool of blood on the inside of the rail, and a small pool on the outside of the rail. One of the defendant's witnesses, — a doctor, — who was on the spot in a few minutes after the train stopped, testified that he found a hole like a bullet hole in the temple of the head, which seemed to be powderburned. He probed the hole with a toothpick, and he, as a doctor, judged it to be a bullet hole. It had that appearance. The doctor testified that the blood, having been coagulated, showed, in his opinion, that Laessig had been dead at least 25 or 30 minutes before the witness arrived on the spot, which was immediately after the train stopped. The doctor lived a short distance from the spot. About 25 or 30 minutes before the train passed he had heard the sound of a shot, as from a revolver, proceeding from the spot where Laessig's body was found."

On behalf of the plaintiff, the court gave the following instructions to the jury: "(1) The court instructs the jury that if they believe from the evidence that on the 2d day of July, 1899, G. H. Clement Laessig was killed by being accidentally run over by a locomotive and train of cars, then in such case the jury will find for the plaintiff in the sum of five thousand dollars, with interest thereon from the 14th day of September, 1899. (2) The court instructs the jury that if the...